In Texas, the Court of Criminal Appeals has final jurisdiction over all criminal matters (excluding juvenile proceedings, which are considered civil matters), while the Texas Supreme Court is the last word on all civil matters including juvenile proceedings even if a criminal act is involved.

The Court of Criminal Appeals exercises discretionary review over criminal cases, which means that it may choose whether or not to review a case. The only cases that the Court must hear are those involving the sentencing of capital punishment or the denial of bail.

The Court is composed of a Presiding Judge and eight judges (unlike the Texas Supreme Court which is composed of a Chief Justice and eight Justices). Each judge serves a six-year term, and they are elected in staggered partisan elections. Although all nine seats are elected at large, the Presiding Judge seat is separately designated from the other seats.

In order to be a judge, a person must be at least 35 years of age, a United States and Texas citizen, licensed to practice law in Texas, and must have practiced law at least 10 years. A person 75 years or older cannot run for a seat on the Court of Criminal Appeals.[2] A person who becomes 75 during their term of office cannot serve more than four years of their term of office.[3] The Governor of Texas, subject to Senate confirmation, may appoint a judge to serve out the remainder of any unexpired term until the next general election.

According to a 2000 special article in the Chicago Tribune, from 1995 to 2000, records show that the court has granted new trials in capital cases eight times and new sentencing six times while affirming 270 capital convictions.[4][5]

On the occasions when the Court of Criminal Appeals grants relief, it sometimes reconsiders. At least six defendants executed since 1995 were granted new trials by the court because the court ruled that fundamental violations of their rights occurred and then had their convictions reinstated after the court changed its mind.[4]

The appointment of attorneys for indigent defendants in capital cases is a source of controversy. District Court judges appoint lawyers for trial and a defendant's initial appeal. Of the 131 inmates executed under Governor George W. Bush, 43 were represented by an attorney who at some point has been disbarred, suspended or otherwise sanctioned.[4]

The appointment of attorneys for an inmate's final appeals, which allow attorneys to move beyond what occurred at trial and investigate for new evidence, has also proved troublesome. Attorneys at this stage can argue, for instance, that prosecutors improperly concealed evidence favorable to the defendant.[4]

Before 1995, appellants were not guaranteed an attorney for final appeals. In 1995, Texas revamped its system with a new law that collapsed the layers of appeal and set strict filing deadlines seeking to ensure that defendants received one full, fair set of appeals. The state agreed to pay for court-appointed attorneys to handle the final appeals for Death Row inmates. The Court of Criminal Appeals got the job of making these appointments. While assigning attorneys in about 300 cases, the Court of Criminal Appeals tapped some with questionable credentials or little experience.[4][5]

For at least eight Death Row inmates, the court handpicked an attorney who previously had been sanctioned by the State Bar of Texas for misconduct, including one attorney who was still on probation. He was among four attorneys appointed by the court who had been disciplined more than once. In a ninth case, the attorney was sanctioned shortly after his appointment. The misconduct ranged from relatively minor infractions to serious violations. They included failing to show up in court, lying to the State Bar of Texas or to a judge, and dismissing a client's legal claim without the client's permission or knowledge.[4]

In April 1996, Robert McGlohon, who had worked as a briefing attorney for one of the appeals court judges, had been a lawyer for less than three years when he was appointed by the court to handle Ricky Kerr's state habeas corpus petition. He filed only one claim, a challenge to the law itself, rather than raise issues that might have granted Kerr a new trial. Thus, per Texas law, he forfeited Kerr's right to raise other issues later.[4][5]

The CCA, though noticing how thin McGlohon's petition was, denied Kerr's appeal. When Kerr could not contact McGlohan, he wrote to the court and asked for another lawyer and a new appeal. McGlohan submitted an affidavit in which he admitted "it may be that I was not competent to represent Mr. Kerr." He blamed a lack of experience and health problems. Prosecutors told the court they would not oppose Kerr's motion for a new lawyer.[4]

However, in 1998, the court responded with a two-paragraph denial. Judge Overstreet, dissented and stated that the court had made a "farce and travesty" of Kerr's rights and that that if Kerr were executed, the court would "have blood on its hands." "By this dissent," Overstreet concluded, "I wash my hands of such repugnance."[4][5][6]

Kerr was granted a stay of execution by Orlando Garcia, a federal judge, two days from his scheduled execution by lethal injection. Judge Garcia found that McGlohon's appointment "constituted a cynical and reprehensible attempt to expedite [Kerr's] execution at the expense of all semblance of fairness and integrity.[5]

On November 22, 2011, Ricky Kerr was resentenced to life imprisonment, after the conclusion of a new punishment trial that occurred when it was discovered his original trial counsel failed to discover mitigating evidence justifying only a life sentence. [1][2]

In 1996 the court in a 5-4 vote denied a new trial to Cesar Fierro who had been coerced into confessing to murdering an El Paso cab driver Nicolas Castanon in 1979. It had been revealed after trial, that the Juarez police had threaten to torture his mother and stepfather unless he confessed. He was arrested when Gerardo Olague, a 16-year-old, implicated Fierro, five months after Castanon's slaying. Before that, nothing had linked Fierro to the crime.[4] A detective, Al Medrano, was aware that the confession had been coerced but denied same at trial. The prosecutor and the trial judge agreed that Fierro deserved a new trial, however Keller and the Court of Criminal Appeals disagreed.[4][7]

Olague testified that Castanon had agreed to give Fierro and Olague a ride to Juarez and Fierro shot and killed Castanon on the way there. Fierro was in an El Paso jail when police questioned him about the Castanon murder. He stated that local police told him that his parents were being held hostage in Mexico by Juarez detectives. Fierro said in a recent interview from Death Row in Livingston: "He told me if I signed, then they'd let them go, and if not, they were going to torture them," At Fierro's trial, Juarez and El Paso police denied wrongdoing.[4]

The opinion, written by Presiding Judge Sharon Keller, accepted the trial court's conclusion of law that "there was a strong likelihood that the Defendant's confession had been coerced by the actions of the Juarez police and by the knowledge and acqiesence [sic] of those actions by Det. Medrano."[8] However, though acknowledging that Fierro's "due process rights were violated", it concluded that "the error was harmless" and denied the motion for a new trial.[4][9]

The majority indicated that the "knowing use of perjured testimony" is trial error and that applicant had to prove harm by a preponderance of evidence. In addition to the confession, the State also had the testimony of Gerardo Olague, an eyewitness to the murder. Though, Fierro's confession alleged that Olague was an accomplice if the confession had been excluded, there would have been no need to corroborate Olague's testimony and Fierro has shown no reason to doubt Olague's testimony. Thus it was more probable than not that the outcome of the trial would have been the same without the confession and Fierro had not met his burden.[10]

There were four dissents filed, by Judges Clinton, Maloney, Baird, and Overstreet. Overstreet called a confession the "most powerful piece of evidence" a prosecutor can offer. He said it was "totally inconceivable" that Fierro's confession did not convince the jurors of his guilt.[4] Judges Maloney and Overstreet felt that the burden should have been on the state to show that the "perjured testimony" did no harm. However, they thought that Fierro had proved harm by a preponderance of evidence. They pointed out that the prosecutor had testified, that had he know the confession was coerced he would joined a motion to suppress it which he felt would have been granted. Without the confession, he would then not have proceeded with the prosecution unless he could have corroborated the Olague's testimony because he felt Olague was "not the most credible witness". They felt that this demonstrated that the prosecutor considered the confession to be critical and therefore it contributed to Fierro's conviction. Further, in the Supreme Court case the majority cited to support its claim that the error here is subject to a harmless error analysis, "the Supreme Court recognized that some trial errors may be so egregious as to entitle an applicant to relief even if the error could not be shown to affect the jury's verdict." They felt that was the case here.[11]

Another controversial decision was in 1998 when by a 5-3 decision (one judge abstaining) the CCA, denying a new trial to Roy Criner, who had been convicted of sexual assault in 1990, despite the fact that newly available DNA testing, showed that he was not the source of the sperm found in the victim.

On the evening of September 27, 1986, Roy Criner, a logger from New Caney, Texas, told his boss (Pitts) and two friends (Hooker and Ringo), that he had picked up a hitchhiker, driven her to Pitts' logging facility, threatened to kill her with a screwdriver, raped her, and thrown her out of the truck. Their testimony was not uniform, e.g., Ringo testified that Criner did not give any date or time-frame as to when these events with the girl took place nor did he state he had non-consensual sex with her or killed or caused her great bodily harm. Hooker agreed that Criner never stated that he had non-consensual sex with the girl or threatened to kill her but testified that Criner had picked the hitchhiker up at a store in New Caney.[12][13][14][15][16] Earlier that evening, ninth grader Deanna Ogg stopped at a store in New Caney to buy cigarettes and told the cashier that "she was going to a party."[17][18] Approximately fifteen minutes before Criner told Pitts about the evening's events, Ogg's body was found near the logging facility; she had been raped, beaten, and stabbed.[18][19][20] The medical examiner concluded that the wounds could have been made with a screwdriver,[21] "among other things".[19] Five days later, having interviewed Pitts, Hooker, and Ringo, and having found a screwdriver in Criner's truck (he had consented to it being searched), the police arrested Criner for the murder.[18] The murder charge was dropped for lack of evidence, however, and aggravated sexual assault was substituted.[15]

When the case came to trial in 1990, prosecutors relied primarily on testimony by Pitts, Hooker, and Ringo about Criner's statements to them.[22] Other evidence—including a cigarette butt found at the scene (Criner didn't smoke, and the brand wasn't Ogg's), and, to the "amaze[ment]" of the appellate court,[23] the screwdriver itself—was not introduced. According to the Houston Free Press, David Walker, the prosecutor, "failed to tell the jury, or the defense, that the screwdriver had been examined and tested [and showed no tie to the crime], though no written record of any test existed." District Attorney Mike McDougal claims it was never tested. In sum, the state had 27 pieces of forensic evidence, none of which connected Criner to the crime.[18][24] Cringer's defense lawyers told the Houston Press and Frontline that they believed the evidence against their client "was so shaky that a jury would never convict" so they put on no defense witnesses and did not adequately cross-examine Pitts, who told Frontline and allegedly the police who ignored him, that there was no way Criner had time to commit the murder.[18][25] Nevertheless, Criner was convicted and sentenced to 99 years.[18][26][27]

On appeal, Criner claimed that the evidence was insufficient to convict him of rape and insufficient to prove that he was responsible for the aggravating element, i.e. the head injury to Ogg.[25][28][29] A divided panel of the intermediate appellate court agreed with his second claim and thus did not rule on his first one.[28][30] A divided Court of Criminal Appeals reversed,[31] and the conviction became final.[32]

In 1997, the semen found in Ogg was subjected to newly-available DNA testing. It was not Criner's.[15][33][34] Criner filed a habeas corpus petition for a new trial, advancing two arguments: an "actual innocence" claim based on the new DNA evidence, and a Brady claim. The following year, the trial court recommended Criner receive a new trial.[35]

On May 16, 1998, the CCA, in a 5-3 decision,[36] overturned the district court's recommendation without written comment "[b]ecause there is overwhelming, direct evidence that establishes that [Criner] sexually assaulted the victim in this case..."[37] After Judge Baird filed a dissent,[12] Keller issued a written opinion on behalf of the majority.[37] The majority felt that the DNA evidence was irrelevant: "Evidence that the victim had sexual relations with someone other than [Criner] simply is not evidence that [he] is innocent."[38] The opinion states that "[t]here was testimony that the victim had had many boyfriends and that she 'loved sex.'"[39] However, the opinion does not dispute Judge Baird's assertion that the state did not put on evidence of Ogg's alleged promiscuity at trial.[40][41] Mike McDougal, the district attorney, denied that his office ever "impugned the reputation of Ogg" and claims not to know where Keller got information about the victim's purported promiscuity. However, the motion he filed in opposing a new trial for Criner, included an affidavit from D.A. investigator John Stephenson that stated he had reviewed "the offense reports in the case," and "One report reflects that the deceased had lots of boyfriends and was very sexually active."[18]

The CCA agreed with arguments made by the state during the habeas hearing that the absence of Criner's semen could be explained by use of a condom or coitus interruptus and that the state could "produce evidence that the victim had had sexual relations with men other than the applicant", and concluded that "[t]he DNA evidence shows merely that the victim had sex[ ] with someone other than [Criner] at a time relatively near her death. It does not and cannot exclude the possibility that she also had sex[ ] with [Criner]."[42]

After the case was decided, Keller, Baird, Joel Albrecht, the foreman of the trial jury, were among those interviewed by Frontline. Keller emphasized the importance of the finality of judgments, and said that Criner had not unquestionably established he was innocent, the applicable standard according to her. She reiterated that the "DNA evidence establishes that someone else had sex with this girl, who was promiscuous."[43] She added: "DNA evidence means different things in different contexts. It's like fingerprint evidence. If someone's fingerprints are at the scene of a crime, that means the person was there at some time or another. But if his fingerprints aren't there, it doesn't prove that he's innocent of a crime committed at that scene, especially if he's told people that he committed the crime[, as allegedly Criner had]." She also stated that an appellate court "look[s] at [new evidence] to see whether it would have made a difference in their verdict. If it would, he gets a new trial. If it wouldn't, then he doesn't." The Frontline interviewer responded "But you are not the jury."[25][44][45] Albrecht disagreed with Keller's majority opinion and stated: "I don't understand how the court could say what we would do. It would be impossible. I personally think if the DNA came forth stating that it was negative, that the verdict would not have been guilty."[18][25][25][45]

Baird disputed that Criner had "confessed" to the crime (Criner's statements to his friends "did not describe the young lady, or the location, and did not necessarily even describe a sexual act that was consistent with the accusations against [him],"). Further he pointed out that the state did not introduce any evidence at trial of Ogg's purported promiscuity. He accused the state of reversing itself, because it had originally argued that Ogg had not had sex with anybody besides Criner. Further, he pointed out that neither "failure to ejaculate" nor "use of a condom" arguments were presented to the jury at trial which the state does not dispute.[46] He emphasized that juries were the heart of the judicial system.[12][25][40][45] In 2009, Texas Monthly said of this interview that Keller appeared to have considered the DNA evidence "a technicality."[47]

Judge Tom Price, who ran for the Chief Judge's seat, said that Keller's Criner opinion had made the court a "national laughingstock."[26][48] Judge Mansfield, who had sided with the majority in denying Criner a hearing, told the Chicago Tribune that, after watching the Frontline documentary, reviewing briefs and considering the case at some length, he voted "the wrong way" and would change his vote if he could. "Judges, like anyone else, can make mistakes ... I hope I get a chance to fix it." He stated that he hoped Criner's lawyers filed a new appeal as he felt Criner deserved to get a new trial.[4]

Following the CCA's refusal to order a new trial, the cigarette butt found at the scene (and not adduced at trial) was subjected to DNA testing.[33] The DNA on the cigarette was not a match for Criner, but it was a match for the semen found in Ogg.[33] Ogg's DNA was also found on the cigarette, indicating that she shared a cigarette with the person who had sex with her (and who presumably killed her). These results convinced the district attorney, local sheriff and the trial judge that Criner was not guilty. The Texas Board of Pardons and Paroles recommended he be pardoned and, citing "credible new evidence [that] raises substantial doubt about [Criner's] guilt," then-Governor George W. Bush pardoned him in 2000.[15][26][28][49][50][51]

In a 6-3 decision, the CCA reversed the district court's recommendation that a man facing the death penalty be granted a new trial for murder because of a romantic relationship between the prosecutor and the judge who heard the case. The affair had been rumored for years,[52] however it was confirmed only a year ago when Hood’s lawyers compelled the judge, Verla Sue Holland, and the prosecutor, Thomas S. O’Connell Jr., to give depositions under oath. Both officials had since retired.[53]

The decision did not discuss whether the affair had prejudiced the first trial; instead, the court the claim was rejected on that the issue should have raised it when Hood first appealed his 1990 conviction. Hood's attorneys had long tried to substantiate the rumors of the affair. They accused the majority of ignoring confirmation of it in the testimony of Judge Holland and prosecutor O’Connell. Judge Holland went on to serve on the Court of Criminal Appeals with all but one of the current members. “This decision by a court where eight of the nine judges once shared the bench with Judge Holland will only add to the perception that justice is skewed in Texas,” said Andrea Keilen, executive director of the Texas Defender Service, which represents Hood.[52][53][54][55]

Hood was convicted of the 1989 murder and robbery of a couple with whom he had been living in Plano, a Dallas suburb. Though he maintained his innocence, his bloody fingerprints were found at the scene, and he was arrested the next day in Indiana driving the murdered man’s car. Several former judges, prosecutors and experts on legal ethics have said that the affair makes it impossible to know if Hood received a fair trial and that it should be cause for a new proceeding.[53][56]

The dissenting opinion, pointed out that Judge Holland and O'Connell "took deliberate measures" to hide their affair." It was not until June 3, 2008, when Hood received the affidavit of Matthew Goeller, a former assistant district attorney, admitting knowledge of the affair, that there was any evidence of the romantic involvement of Holland and O'Connell. "Rumors and gossip, no matter how widespread, how detailed, or how extravagant, are not facts." It was not until Hood's attorneys obtained a court order requiring Judge Holland and Mr. O'Connell to give depositions that they were able to establish the facts about the affair. Under those circumstances, the dissent felt that Hood should not be penalized for his attorneys inability to prove the affairs existence earlier and should have been granted a new trial.[57]

On September 25, 2007, Presiding Judge Keller refused convicted murderer Michael Richard's plea for a 20-minute extension to submit an appeal beyond the court's 5 p.m. closing time, due to his lawyer's alleged computer breakdown.[58] Following the denial of his stay application by the U.S. Supreme Court,[59] Richard was executed later that night. The United States Supreme Court had earlier that day accepted for consideration a case known as Baze v. Rees from Kentucky in which two death row inmates were challenging the constitutionality of lethal injection as a method of execution. Richard was the last person executed in the United States after the U.S. Supreme Court accepted the Baze case until after there was considerable further litigation. Keller, the Presiding Judge, made the decision not to accept the late appeal without consulting the duty judge or any of the other judges on the court. As a result, several judicial complaints were filed against Keller with the State Commission on Judicial Conduct. On February 19, 2009, the State Commission on Judicial Conduct charged Keller with misconduct, writing her behavior "constitutes incompetence in the performance of duties of office" and "casts public discredit on the judiciary." The CCA subsequently changed its rules to allow for late submissions in death penalty cases and other emergency situations, and recently enabled filing in death penalty execution cases and certain other emergency situations.[60]